IN THE MĀORI LAND COURT OF NEW ZEALAND WAIARIKI DISTRICT A TANIA MARIE CHARTERIS Applicant. CATRINA ROWE Respondent

Transcription

1 181 Waiariki MB 108 IN THE MĀORI LAND COURT OF NEW ZEALAND WAIARIKI DISTRICT A UNDER IN THE MATTER OF BETWEEN AND Sections 113 and 117 of Te Ture Whenua Māori Act 1993 David John Charteris (deceased) TANIA MARIE CHARTERIS Applicant CATRINA ROWE Respondent Hearing: 5 May 2016, 140 Waiariki MB April 2016, 162 Waiariki MB July 2017, 166 Waiariki MB November 2017, 174 Waiariki MB November 2017, 177 Waiariki MB (Heard at Rotorua) Appearances: M Malcolm and T Wara for the applicant C Bidois for the respondent Judgment: 21 February 2018 JUDGMENT OF JUDGE C T COXHEAD Copies to: M Malcolm and T Wara, Tupono Legal Ltd DX JP Rotorua 3040 tuponolegal@gmail.com C Bidois East Brewster Ltd DX JP Rotorua 3040 curtis.bidois@eastbrewster.co.nz J Hunter Barrister and Solicitor DX GA Thames 3540 jane@janehunter.co.nz

2 181 Waiariki MB 109 Introduction [1] David Charteris died on 1 June He left a Will dated 5 March By his will, the deceased left the residue of his estate (including his Māori land interests) to his grandchildren. [2] On 25 July 2012, the High Court determined that, as a matter of construction of the will of the deceased, Samuel James Hughes, Paige Wendy Hughes, Noah Nicholas Unkovich and Milo Charlie Tomas Unkovich are grandchildren of David John Charteris. 1 On 16 October 2012 that order was varied to include Gracen Sydney Molly-May Lines and Jovi Rewiti Te Mauri Ranginui Mitchell as grandchildren of the deceased. Those named above are the children of Catrina Rowe and Tania Charteris respectively. 2 [3] Then on 16 October 2012 the High Court varied the 25 July order to provide that as a matter of construction of the will of the deceased, Samuel James Hughes, Paige Wendy Hughes, Noah Nicholas Unkovich, Milo Charlie Tomas Unkovich, Gracen Sydney Molly- May Lines and Jovi Rewiti Te Mauri Ranginui Mitchell are grandchildren of David John Charteris. [4] It was also agreed that a whānau trust would be constituted in respect to the deceased s Māori land interests with the High Court reserving leave to all parties for a number of matters, including in relation to the deceased s interest in Māori lands, the establishment of a whanau trust. [5] On 19 February 2016, the applicant, Tania Charteris, filed an application to succeed to the deceased on the basis that the administrators of the deceased s estate had not made an application in the ten-year period since the deceased passed away. The applicant, seeks succession orders in favour of her two children, Gracen Lines and Jovi Mitchell. The applicant also sought a determination as to the entitlement of Catrina Rowe to succeed. 1 Maddox v Maddox HC Hamilton CIV dated 25 July Maddox v Maddox HC Hamilton CIV dated 16 October 2012.

3 181 Waiariki MB 110 [6] Correspondence was subsequently received from the administrators of the Estate, on 3 May 2016, stating that the application required amendment for it to conform with the Will of the deceased given the High Court orders. [7] The application is opposed by Catrina Rowe, on the basis that her children are also entitled to succeed in terms of the Will, as determined by the High Court. The applicant says that there is insufficient evidence that Catrina is the deceased s daughter and as such Catrina s children should not be entitled to succeed. [8] The issue for determination is whether the Court has the jurisdiction to effectively re-determine who is entitled to succeed to the interests of David John Charteris. Applicant s submissions [9] Counsel for the applicant submits that the critical issue before the Court is a determination of beneficial entitlements per s 113 of the Act, in particular, assessing whether the children of Catrina Rowe are entitled to succeed to the Māori land interests of the deceased. [10] Counsel adds that issues about the interpretation of the Will were raised in the High Court resulting in the matter being resolved by consent in favour of the grandchildren as named in the High Court judgment. [11] Counsel argues that while s 108 of the Act provides for a disposition by Will there is an obligation on this Court to ensure that the potential beneficiary fits within the class. [12] In addition, counsel argues that distribution should be made in accordance with s 108(2)(c) rather than 108(2)(a) as argued by the respondents. That is, that Mr Charteris can dispose of his Māori land interests to any other person who is related by blood and a member of the hapū associated with the land. [13] The applicant says that there is sufficient evidence to cast doubt on the paternity of Caterina Rowe and her children, which in turn raises the possibility that Caterina Rowe s children are not related by blood to the deceased.

4 181 Waiariki MB 111 [14] Counsel submits that the Court is bound to ensure that Māori land is transferred to those who whakapapa to the land. The preamble also recognises that land is a taonga tuku iho which is of special significance to Māori and should be retained in the hands of its owners, their whānau and their hapū. [15] Counsel further states that the paternity of Ms Rowe s father needs to be established. Counsel relies on this Court s decision in Coutts Estate of James Pou, 3 which established that paternity may be provided in descending authority by DNA blood testing, testimony of the mother, the putative father and the hearsay evidence of whānau and associates. [16] Added to that, counsel refers to Kepa v Kautai, 4 where the Court summarised several cases that commented on DNA evidence. Counsel states that Ms Rowe s father is not recorded on her birth certificate and as such Mr Charteris cannot be presumed to be the father. [17] It was further argued by counsel that the applicant and the deceased s sister have agreed to submit a DNA test and counsel points out that the Court indicated it could fund the cost of the testing and argues that for the respondent to prove her case on the balance of probabilities DNA evidence is required especially given the fact that Māori land is a taonga tuku iho which should pass on to those who whakapapa directly to the land. [18] Regarding the evidence of Glyness Charteris, Ms Rowe s mother, counsel submits that this evidence, casts significant doubt on the paternity of Ms Rowe s father and is the reason why their client seeks this determination from the Court. Counsel says that as Ms Rowe s birth mother the evidence carries significant weight. [19] Counsel submits that evidence has been provided from Shona Maree Charteris, the deceased s sister who believes that Ms Rowe is not a blood relative. Also, the evidence given by Corrine Fleming the ex-partner of the deceased should be taken very lightly. 3 Coutts Estate of James Pou (2008) 129 Whangarei MB 145 (129 WH 145). 4 Kepa v Kautai (2016) 52 Takitimu MB 256 (52 TKT 256).

5 181 Waiariki MB 112 [20] In conclusion, counsel submits that per s 108(2)(c) the Māori land interests of the deceased are a taonga that should be succeeded to by blood relatives. The onus is on the respondent to prove that on the balance of probabilities she is the biological daughter of the deceased which would prove her children are related by blood to the deceased. [21] Counsel submits the respondent has failed to prove beyond the balance of probabilities she is the child of the deceased and as such a determination should be made per s 113 that the children of the applicant are beneficially entitled to succeed and per s 217 of the Act the interests should be vested in a kaitiaki trust for the benefit of Gracen Lines and Jovi Mitchell until they reach the age of 20. Respondent s submissions [22] Mr Bidois, counsel for the respondent seeks a pre-trial ruling on the extent to which the Court retains any residual discretion to determine the persons legally entitled to the deceased s Māori land interests. [23] Counsel submits that it appears from the application and the witness affidavits and recent memoranda that the applicant is intending to relitigate the question of whether the respondent s children are the grandchildren of the deceased. Counsel states that the question has already been determined by the High Court on 16 October [24] Counsel argues that per s 108(2)(a) the deceased was lawfully entitled to leave his Māori land interests to his children and remoter issue. Counsel says that the High Court judgment identifies the deceased s grandchildren and submits that it is only those grandchildren who can be the remoter issue contemplated by s 108(2)(a). [25] As a consequent, Mr Bidois submits that the Court discretion per s 113 has now been displaced or overtaken by the High Court judgment. Therefore, he says that the persons legally entitled are the named grandchildren and the applicant is estopped from advancing any case to the contrary.

6 181 Waiariki MB 113 [26] Counsel argues that, as a consequence of the High Court judgment, various estoppels have arisen which impact on the Courts discretion and the case that the applicant can lawfully advance in this proceeding. [27] Further counsel submits that the question of who the deceased s grandchildren are has already been determined by the High Court and as such the doctrine of issue estoppel operates to prevent this Court from revisiting that question under s 113 of the Act. [28] In addition, the doctrine of res judicata provides for finality in civil proceedings by preventing parties from relitigating the same question in later proceedings. Mr Bidois states that the doctrine is based on two grounds, first that it is in the public interest that there should be an end to litigation and second that of hardship on the individual and no person should be vexed twice for the same cause. [29] Mr Bidois argues that the applicant in this case is endeavouring to follow the same circular process as the appellants in the Māori Appellate Court decision of Pukeroa Oruawhata, 5 as no new situation has presented itself to the Court. The applicant is inviting the Court to revisit the same question that was asked or could have been asked in the High Court. [30] Counsel also argues that the High Court judgment is binding on this Court and as such the Court is obliged to follow it. The Court must find that those named grandchildren are the remoter issue for the purpose of succession. [31] Further, counsel says that there is also an estoppel by representation that prevents the applicant from denying that the respondent s children as grandchildren of the deceased. The Executors and the respondent together with her children have each altered their respective positions to their detriment in reliance on the applicant s representation. Funds have been advanced and accepted in the expectation that the advance would be set off against future distributions. The applicant is estopped from advancing any case that the respondents children are not the grandchildren of the deceased, or that they are not the persons legally entitled to succeed as the deceased s remoter issue per s 108(2)(a). 5 Trustees of Pukeroa Oruawhata Trust v Mitchell Pukeroa Oruawhata Trust (2008) 12 Waiariki Appellate Court MB 1 (12 AP 1)

7 181 Waiariki MB 114 [32] Mr Bidois argues that the applicant has had ample opportunity to consider her position and take legal advice following the High Court judgment and she has not done so. Further, the assertion that the applicant did not understand the judgment would cover the Māori Land interest is also inconsistent with other material before the Court. The Law [33] Section 108 of Te Ture Whenua Māori Act 1993 states: 108 Disposition by will (1) Except as provided by subsections (2) and (3), no owner of any beneficial interest in any Maori freehold land has the capacity to dispose of that interest by will. (2) An owner of a beneficial interest in Maori freehold land may leave that interest by will to any person who belongs to any 1 or more of the following classes: (a) (b) (c) (d) (e) (f) children and remoter issue of the testator: any other persons who would be entitled under section 109(1) to succeed to the interest if the testator died intestate: any other persons who are related by blood to the testator and are members of the hapu associated with the land: other owners of the land who are members of the hapu associated with the land: whangai of the testator: trustees of persons referred to in any of paragraphs (a) to (e). (2A) (2B) A person in whom an occupation order has been vested may leave the occupation order by will to any 1 or more persons who come within subsection (2). A person is entitled to succeed to an occupation order by will (a) (b) if the person owns a beneficial interest in the land to which the occupation order applies; and if the court is satisfied, in the circumstances, that the extent of the person s beneficial interest in the land justifies that person succeeding to the occupation order. (2C) An occupation order that passes by will is cancelled automatically on the date of expiry or termination of the occupation order.

8 181 Waiariki MB 115 (3) Subsection (2)(e) shall have effect notwithstanding anything in section 19 of the Adoption Act (4) Any owner of a beneficial interest in Maori freehold land may by will leave that interest to the owner s spouse, civil union partner, or de facto partner for life or for any shorter period. (5) Any provision in a will purporting to leave a beneficial interest in Maori freehold land to any person otherwise than in accordance with subsection (2) or subsection (4) shall be void and of no effect; and that interest shall, unless disposed of in accordance with either of those subsections by some other provision of the will, pass to the persons entitled on intestacy. (6) Where any beneficial interest in Maori freehold land is left by will to any trustee, the trustee shall not have power under the will or under any Act to sell the interest; and any provision in the will purporting to confer such power shall be void and of no effect. [34] Section 113 of the Act is also relevant: 113 Maori Land Court to determine beneficial entitlements to Maori land (1) On an application by the administrator or by any person interested or by the Registrar, the court shall determine the persons (in this section referred to as the beneficiaries) who are legally entitled to succeed to any beneficial freehold interest in Maori freehold land belonging to any estate to which this Part applies, and shall define the proportions of the several beneficiaries. (2) Every determination made for the purposes of this section shall be recorded in the minutes of the court, but it shall not be necessary for the court to draw up in writing any order with respect to its determination. (3) Where any freehold interest in land has been devised by will to a trustee other than a bare trustee, the trustee shall be deemed for the purposes of this section to be the beneficiary. (4) In considering any application under this section, the court may require such evidence as it thinks fit, but may, without further inquiry, accept the certificate of the administrator that the person named in the certificate is entitled to succeed to the interest to which the application relates. (5) Until the court has made a determination under this section in respect of any beneficial freehold interest in Maori freehold land belonging to any estate, no vesting order may be made in respect of that interest under section 117 or section 118. (6) The making of a determination under this section shall not absolve the executor or administrator from any liability incurred by the executor or administrator in respect of his or her duties.

9 181 Waiariki MB 116 Discussion [35] By his will, David Charteris expressed a clear intention that his grandchildren be entitled to his estate. Per s 108(2) of the Act, he had the capacity to do so. There is a High Court judgment determining, as a matter of construction of the Will who the grandchildren of the deceased are. As part of those proceedings it was also agreed that the deceased s Māori land interests would be placed into a whānau trust for the benefit of those grandchildren. [36] It is without doubt that the High Court has jurisdiction to grant administrations of estate which contain Māori land and to hear and determine proceedings in respect of testamentary and other matters relating to those estates. 6 [37] As the Māori Appellate Court has previously stated the requirement per s 113, to determine the beneficiaries, means that the Court has to decide between competing claims in an estate and this jurisdiction is concurrent with that of the High Court. 7 That being said, where Probate of a will is granted by the High Court this Court is bound to act on that grant. 8 [38] The Will is clear and unequivocal. It was the deceased s clear desire that his grandchild succeed to his estate. There is a High Court decision which specifically states who the deceased s grandchildren are. That cannot be overlooked. [39] Section 108 provides for the deceased to devise his Māori land interests to his children or remoter issue per s 108(2)(a). That is the provision we are dealing with in this case. Although counsel for the applicant argued that the application should be consider per s 108(2)(c) I do not agree. The grandchildren of the deceased fall within s 108(2)(a) and there is a High Court judgment naming such grandchildren. If the parties wish to dispute the High Court judgment they will need to seek remedy elsewhere. This Court is bound by the judgment of the High Court. 6 Te Ture Whenua Māori Act 1993, s Hodgson Estate of Ropata Wharetoetoe Rare (2004) 34 Gisborne Appellate Court MB 120 (34 APGS 120). 8 At MB 124.

10 181 Waiariki MB 117 [40] Further, I agree with counsel for the respondent s submission that this Court is estopped from determining the issue of entitlement to succeed as it has already been determined by the High Court. In the Court of Appeal decision of Kameta v Nicholas concerning entitlement to succeed to Māori land interests the Court of Appeal found that the principle of estoppel per rem judicatum applied in that: 9 [44] That rule applies to bar a party from disputing or questioning a decision on its merits by a Court of competent jurisdiction on a later claim between the same parties and relating to the same subject matter. In this case the Māori Appellate Court has already determined the competition between these parties to ownership of Mr Kameta s two blocks of land. His siblings cannot now re-open that issue by pursuing a new challenge to the decision on a different legal basis from that argued and available to them before the Māori Appellate Court. [41] I therefore determine that those entitled to succeed to the Māori land interests are the grandchildren of the deceased as determined by the High Court. [42] Given my findings above it is not necessary to address the claims concerning Ms Rowe s paternity. Decision [43] The Trustees of the estate of the late David Charteris requested that the Court amend the application so that David Charteris grandchildren as determined by the High Court, succeeded to his Māori land interest. [44] While it appears that prior to the High Court orders of 12 October 2012 it was contemplated that a whānau trust be established that clearly does not appear to be the positon of all parties now. Previous counsel for the applicant indicated, as an alternative to what was sought in the application, that if the Court saw fit to allow the terms of David Charteris will then those interests should be divided equally amongst the grandchildren and Tania Charteris would seek to have the shares of her minor children placed in a kaitiaki trust. [45] Catrina Rowe sought similar provision whereby the Court follows the terms of David Charteris will and the interest of Tania Charteris children be placed in a kaitiaki trust 9 Kameta v Nicholas [2012] NZCA 350.

11 181 Waiariki MB 118 until they reach the age of 20 and the interest of Catrina s minor children also be placed in kaitiaki trust while the interest of her adult children be vested in them. [46] Given my reasons above the Court makes orders pursuant to Te Ture Whenua Māori Act 1993: (a) Sections 108(2)(a) and 113 determining that the persons entitled to succeed to the deceased s interests are Samuel James Hughes, Paige Wendy Hughes, Gracen Sydney Molly-May Lines, Noah Nicholas Unkovich, Milo Charlie Tomas Unkovich and Jovi Rewiti Te Mauri Ranginui Mitchell as tenants in common in equal shares, in terms of the will of the deceased; (b) Section 117 vesting the Māori land interests of the deceased in the persons entitled in equal shares; (c) Section 37(3) invoking sections 217 and 219 in respect of the following: (i) the beneficiary Gracen Sydney Molly-May Lines, born 18 th September 2000, constituting the Gracen Sydney Molly-May Lines Kaitiaki Trust as to a one sixth interest in the deceased s interests, and declaring the terms of trust in accordance with the standard Waiariki Kaitiaki Trust order; (ii) the beneficiary Noah Nicholas Unkovich, born 10 th June 2004, constituting the Noah Nicholas Unkovich Kaitiaki Trust as to a one sixth interest in the deceased s interests, and declaring the terms of trust in accordance with the standard Waiariki Kaitiaki Trust order; (iii) the beneficiary Milo Charlie Tomas Unkovich, born 30 th August 2005, constituting the Milo Charlie Tomas Unkovich Kaitiaki Trust as to a one sixth interest in the deceased s interests, and declaring the terms of trust in accordance with the standard Waiariki Kaitiaki Trust order;

12 181 Waiariki MB 119 (iv) the beneficiary Jovi Rewiti Te Mauri Ranginui Mitchell, born 13 th September 2012, constituting the Jovi Rewiti Te Mauri Ranginui Mitchell Kaitiaki Trust as to a one sixth interest in the deceased s interests, and declaring the terms of trust in accordance with the standard Waiariki Kaitiaki Trust order; (d) Section 220 and 222 appointing Tania Marie Charteris as trustee of the Gracen Sydney Molly-May Lines Kaitiaki Trust; and the Jovi Rewiti Te Mauri Ranginui Mitchell Kaitiaki Trust and vesting the respective Māori land interests in her as trustee; (e) Sections 220 and 222 appointing Catrina Margaret Rowe as trustee of the Noah Nicholas Unkovich Kaitiaki Trust and of the Milo Charlie Tomas Unkovich Kaitiaki Trust and vesting the respective Māori land interest in her as trustee. Pronounced at 4.35pm in Rotorua on Monday this 21 st day of February 2018 C T Coxhead JUDGE